Agricultural employers weren’t required to bargain with a union because of sector’s economic fragility but court says collective bargaining rights are protected under the Canadian Charter of Rights and Freedoms

11/27/2008|employmentlawtoday.com

An Ontario law preventing agricultural workers from collective bargaining due to the economic vulnerability of the agricultural sector has been struck down as unconstitutional by the province’s Court of Appeal.

Agricultural workers have traditionally been excluded from collective bargaining rights in Ontario labour relations legislation due to the concern that unionization and collective bargaining could lead to strikes. The agricultural industry, particularly small family farms and other seasonal businesses, was considered particularly vulnerable to work stoppages and added labour costs of a unionized workforce. Eventually, the Ontario government passed the

Agricultural Labour Relations Act, 1994

(ALRA), which gave rights and protections similar to other workers, but specified final offer selection to resolve bargaining disputes instead of strikes and lockouts.

However, the ALRA was repealed the following year, leaving agricultural employees with no protections for organizing and collective bargaining once again. In 2001, the Supreme Court of Canada in

Dunmore v. Ontario

ruled this lack of protection violated agricultural workers’ right to organize. This led to a new law, the

Agricultural Employees Protection Act, 2002

(AEPA). The AEPA gave agricultural workers the right to form and join an employees’ association and make representations to their employers through an association, which the employer was obliged to listen to. However, formal collective bargaining rights were not included.

After the

Dunmore

decision, workers at Rol-Land Farms in Kingsville, Ont., were organized by the United Food and Commercial Workers (UFCW) for the purposes of bargaining a contract. By 2003, 70 per cent of Rol-Land workers were members of UFCW, who tried to negotiate a contract with Rol-Land. UFCW also organized workers at Platinum Produce, a greenhouse in Chatham, Ont. However, both employers rejected the overtures, feeling they weren’t obliged to bargain with a union.

The union and employees felt since the employers had no statutory duty to bargain, they were left without any remedy. They claimed the AEPA violated their rights under the

Canadian Charter of Rights and Freedoms

, such as the freedom to assemble and collectively bargain for workplace objectives.

Their application was initially dismissed when the judge found the AEPA met the minimum statutory requirements necessary to protect the freedom to organize.

The Ontario Court of Appeal disagreed, finding AEPA’s provision for employee associations and employer attention to them didn’t do enough to protect the charter rights of workers. In addition to

, in which the Supreme Court ruled the charter’s guarantee of freedom of association included the right to associate for the purpose of collective bargaining on workplace issues.

“Without a statutory duty to bargain in good faith, there can be no meaningful collective bargaining process,” the court said. “In keeping with that goal, legislation dealing with collective bargaining must also provide a mechanism for resolving bargaining impasses.”

The court didn’t support the union’s contention that the AEPA interfered with their right to band together and form employee organizations. The AEPA allowed UFCW to organize workers at both Rol-Land and Platinum Produce without any trouble. The problem, the court said, was in getting the employers to recognize the union for the purposes of collective bargaining, for which the AEPA gave no legal requirement.

The court also didn’t agree with the argument the AEPA breached the equality rights of the agricultural workers, since their distinction from other workers was not based on a protected ground in the charter.

“The AEPA identifies an economic sector and limits the access of workers within that sector to aspects of a particular labour relations scheme,” the court said. “The category of ‘agricultural worker’ does not denote a personal characteristic of the type necessary to support a (charter) discrimination claim.”

However, since the AEPA excluded all agricultural employees from the same collective bargaining rights as other workers, regardless of whether they worked for small family farms or large commercial enterprises, the court found the reason for this exclusion was not “rationally connected” to the economic concerns of some parts of the agricultural industry.

“The wholesale exclusion of agricultural employees from a collective bargaining scheme is not adequately tailored to meet the objective of protecting the family farm,” the court said. “It is arbitrary to exclude all agricultural workers from a collective bargaining scheme on economic grounds, where collective bargaining has been extended to almost every other class of worker in Ontario, even in other industries that also face thin profit margins and unpredictable production cycles.”

With the Supreme Court of Canada’s decisions in

Dunmore

and

B.C. Health Services

as a basis, the court ruled the AEPA was unconstitutional because it impaired the right of agricultural workers to bargain collectively, right under the charter, by not giving employers a statutory requirement to bargain with the workers. It struck down the AEPA and ordered the Ontario government to “provide agricultural workers with sufficient protections to enable them to exercise their right to bargain collectively.” The decision was suspended for 12 months to allow the government time to develop new legislation to accommodate the workers’ collective bargaining rights.